Bangalore District Court
Krishnamurthy.R vs Sri.R.Somashekar on 12 November, 2020
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OS No.5415/2012
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 12 th day of November, 2020
PRESENT :- SRI S.R.MANIKYA., B.Sc., LL.B.
LXI Addl. City Civil & Sessions Judge,
Bangaluru City.
ORIGINAL SUIT NO.5415/2012
Plaintiff/s : 1. Krishnamurthy.R
S/o.Late Ramakrishna &
Late Smt.Gowramma
Aged about 55 years
R/a.No.229/17, 10th Main,
7th Cross, Sriranga Road,
Hanumanthanagara,
Bengaluru-19.
(By Sri.G.H.N., Advocate)
V/s.
Defendant/s : 1. Sri.R.Somashekar
S/o.Late Ramakrishna & Late
Smt.Gowramma
Aged about 52 years
2. Smt.B.Latha
W/o.Sri R.Somashekar
Aged about 45 years
3. S.Vishal
S/o.R.Somashekar
Aged about 21 years
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(Defendants No.1 to 3 are
R/a.No.159, 4th Main, 4th Cross,
BCC Layout, Bengaluru-40.
4. R.Shubha
S/o.Late Sri Ramakrishna &
Late Smt.Gowramma
Aged about 50 years.
5. Smt.Bharathi
W/o.R.Shubha
Aged about 40 years
6. Master S.Manoj
S/o.Sri.R.Shubha
Since Minor,
Rep. by her father and Natural
Guardian Sri.R.Shubha
7. Kumari.S.Deepthi
S/o.Sri R.Shubha
Since Minor Rep. by her father &
natural guardian Sri.R.Shubha
(Def. No.4 to 7 r/a No.273, 26th
cross, 4th main, Judicial Layout,
GKVK Road, Bengaluru-65.
8. R.Mahesh
S/o.Late Sri Ramakrishna & late
Smt.Gowramma
Aged about 47 years
9. Smt.Mamatha
W/o.Sri R.Mahesh
Aged about 38 years
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10. Kumari M.Varsha
D/o.Sri R.Mahesh
Aged about 13 years
Since Minor Rep. by her father
and Natural Guardian
Sri.R.Mahesh
11. Kumari M.Bhavana
D/o.Sri.R.Mahesh
Since Minor Rep. by her father
and Natural Guardian
Sri.R.Mahesh
(Defendants 8 to 11 are
R/a.No.19/5, 2nd Floor, Floor Mill
Building, Swasthi Road,
Beemanna Garden,
Shanthinagara,
Bengaluru-27).
12. R.Rishikesh
S/o.Late Sri Ramakrishna &
Late Smt.Gowramma
Aged about 44 years
13 Smt.Nirmala
W/o.Sri Rishikesh
Aged about 35 years
14 Master R.Nihar
S/o.Sri R.Rishikesh
Since Minor, Rep. by his father
and natural guardian
Sri.R.Rishikesh
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15 Kumari R.Nanditha
D/o.Sri Rishikesh
Since Minor,
Rep. by her father & Natural
Guardian Sri R.Rishikesh
(Defendants No.13 to 16 are
R/a.No.149, 36th Cross, 28th
Main, 9th Block, Jayanagara,
Bengaluru-09)
16 Jitendra Kumar
S/o.Late Sri Kewal Chand
Aged about 31 years
17 Nitesh Kumar
S/o.Late Kewal Chand
Aged about 28 years
(Defendants No.16 and 17 are
R/a. No.241/6, 3rd Floor, Nandi
Mansion, Aralegudi Compound,
Cottonpet, Bengaluru-53.)
Date of institution
of the suit : 10.05.2012
Nature of the suit
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Partition Suit
Date of the commencement
of recording of the evidence : 22.08.2014
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Date on which the
Judgment was pronounced : 12.11.2020
Year/s Month/s Day/s
Total Duration : -08- -06- -02-
JU DG M E NT
This is a suit filed by the plaintiff for the relief of
partition and separate possession of 1/5th share in the suit
schedule property and also to declare that the sale deed dated
22.05.2012 executed by defendant No.1 to 15 in favour of
defendant No.16 and 17 as not binding on the plaintiff.
SCHEDULE
All the part and parcel of the residential property comprising
a building, constructed on the site bearing No.11/1
(bifurcated Site No.413/B), (Old No. 413), PID No.70-38-11/1,
Swathi Cross Road, East End, Beemanna Garden,
Shanthinagara,(Earlier Akkithimmanahalli, Old division
No.62), Bengaluru-27, having ground, first and second floors
thereon measuring about 1,500 sq. ft. of build up area, with
red-oxide flooring-site measuring east to west 14.60 +
15.70/2 meters, North to South 6.85 + 8.00/2 meters, in all
measuring about 112.48 sq. mt. Equivalent to 1210.72 sq. ft
and bounded on the;
East by : Private Property
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West by : Road
South by : Site No.413/A
North by : Site No.414.
2. The brief facts of the plaintiff's case is that;
The plaintiff and defendant No.1 to 5 are the relatives
and constitute the joint family members. The plaintiff and
defendant No.1, 4, 8 and 12 were the absolute owners of the
property bearing site No.11/1 now bifurcated as Site
No.413/B, Old No. 413, measuring east to west
14.60+15.70/2 meters and north to south 6.85 + 8.00/2
meters situated at Swathi Cross Road, East End, Beemanna
Garden, Shanthinagara. Now, first and second floors have
constructed thereon measuring about 1,500 sq. ft. of build up
area, with red-oxide flooring. Smt.Gowramma had acquired
the property through a registered sale deed dated 13.02.1981
from one K.K.Srinivasa Gupta and it was self acquired
property of Smt.Gowramma.
Originally site No.413 was allotted to Smt.M.P.Pail. After
the death of M.P.Patil the property was transferred to
Madhura.S.Patil and she sold the site to K.K.Sreenivasa
Gupta and K.K.Sreenivasa Gupta sold the southern portion of
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the site bearing No.413 to Smt.Gowramma. During the life
time of Smt.Gowramma, the plaintiff and defendants were in
joint possession of the suit schedule property.
Smt.Gowramma mother of the plaintiff and defendant No.1, 4,
8 and 12 died intestate on 08.10.1986. The father of plaintiff
and defendant No.1, 4, 8 and 12 namely Ramakrishna also
died intestate on 28.04.1998. After the death of
Smt.Gowramma and Ramakrishna, the 1 st defendant has
made an application before the BDA for bifurcation of site
No.413 and accordingly the old site No.413 was divided into
413/A and 413/B and 413/B was transferred in the name of
1st defendant and further the sale deed was executed on
14.05.2012 though there was sale deed in favour of
Smt.Gowramma who is the mother of the plaintiff and
defendant No.1, 4, 8 and 12.
On the basis of false sale deed, defendant No.1, 4, 8 and
12 transferred the khatha in the name of 1 st defendant and
though there was no division between the plaintiff and
defendant No.1, 4, 8 and 12 and the plaintiff is entitled for
1/5th share in the suit schedule property as he is also one of
the son of Smt.Gowramma and upon noticing the hostile
attitude of defendant No.1, 4, 8 and 12 when enquired it
came to the knowledge of the plaintiff that defendant No.1 to
15 have colluded with each other to deprive the right of the
plaintiff have executed a sale deed dated 22.05.12 in favour of
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defendant No.16 and 17 without the signature of the plaintiff
and without the consent of the plaintiff. Hence, the said sale
deed is not binding on the plaintiff.
As the property was a self acquired property of
Smt.Gowramma all the sons and daughters i.e., defendant
No.1, 4, 8 and 12 are entitled for 1/5th share. Now, the
plaintiff is also entitled for 1/5th share. Hence, this suit has
been filed claiming 1/5th share in the suit schedule property.
3. After registration of the case, defendant No.8, 16 and
17 have filed written statement. The defendant No.8 has
admitted about the relationship of plaintiff and defendant
No.1,4, 8 and 12 and also about the acquisition of the
property by Smt.Gowramma by virtue of the sale deed and
also admitted about the alienation made in favour of
defendant NO.16 and 17. Also specifically admitted about
division of site No.413A and 413B. He has specifically denied
about the claim of the plaintiff as a legal representative of
Smt.Gowramma. On the other hand, it is contended that the
plaintiff is the elder son of Ramakrishna and
Smt.Gowaramma and he was adopted by B.T.Ramaiah and
Lakshmamma about 50 years ago and from the date of
adoption the plaintiff was residing with them and he was
looking after the well being of B.T.Ramaiah and Lakshmamma
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and all the educational expenses and marriage expenses were
borne out by the adopted father and mother and he has
performed obsequies of B.T.Ramaiah and Smt.Lakshmamma.
By virtue of the Will dated 03.02.1982, the plaintiff has
acquired the property and even in the public records such as
ration card, voters card and genealogical tree the name of the
plaintiff is mentioned as Son of B.T.Ramaiah and
Lakshmamma. Further, it is also contended that the property
was mortgaged with the Central Co-operative Bank and
obtained loan for construction of the house for which also, the
plaintiff was not a party and it is only the defendant No.1, 4,
8 and 12 have affixed their signatures. Under such
circumstances, the claim of the plaintiff with respect to the
partition is not maintainable, as he is not in possession and
enjoyment of the property jointly. The court fee paid on the
plaintiff is insufficient. Hence, on all these grounds he has
prayed for dismissal of the suit.
4. The defendant No.16 and 17 are the purchasers of
site No.413/B by virtue of sale deed dated 22.05.12. They
have also filed written statement and contended that they
have become the absolute owner of the suit schedule property
by virtue of the sale deed and relationship of defendant No.1,
4, 8 and 12 is not within the knowledge of these defendants.
The plaintiff has not approached the court with clean hands
and the plaintiff no where contended that the defendant No.1
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to 15 have no right to alienate the property hence, the
question of claiming partition does not arise at all. The
defendant No.16 and 17 are bonafide purchasers and as BDA
has executed the sale deed on 14.05.2012 in favour of
defendant No.1 who in turn along with defendant No.2 to 5
sold the schedule property to these defendants and the
allegation made by the plaintiff with respect to the BDA and
false documents produced before the BDA is specifically
denied. The BDA has Town Planning Authorities have
specifically noticed the fact of allotment made in favour of
Patil and later on in the onwership of Madhura.S.Patil and
about the execution of the sale deed in favour of
Smt.Gowramma and also noticed the fact that Gowramma
and Ramakrishna died intestate and thereby they have
become the absolute owners of the suit schedule property.
They have got their absolute right to alienate the property.
The plaintiff is no where connected to the family of
Smt.Gowramma and while executing the sale deed by BDA,
the name of the plaintiff is not at all considered and no claim
is also made by the plaintiff with respect to the property.
Under such circumstances, the suit filed by the plaintiff is
liable to be rejected and as a bonafide purchaser the
defendant No.16 and 17 right has to be protected. Hence, he
prayed for dismissal of the suit.
In the same written statement, defendant No.16 and 17
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have also claimed the counter claim against the defendant
No.1 to 15 to make indemnify the defendant No.16 and 17
since the defendant No.1 to 15 have categorically and
unequivocally stated in the sale deed in case of any defect in
the title of the property, the defendant No.1 to 15 are liable to
indemnify the purchaser and he has also referred to the
specific clause mentioned in the sale deed and specifically
contended that the defendant No.1 to 15 have to indemnify
the defendant No.16 and 17 and hence th counter claim is
also preferred to grant the courter claim.
5. Inview of rival contention of both the parties my
learned predecessor has framed the issues as follows;
1.Whether the plaintiff prove
that he is entitled for
1/5th share in the suit
schedule property?
2. Whether the plaintiff
proves that the sale deed
dt.22.04.12 executed by
defendant No.1 to 15 inf
favour of the defendants
No.16 and 17 is not
binding on the plaintiff?
3. Whether the defendant
No.8 proves that the suit
schedule property sold to
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meet the legal and
domestic necessities as
alleged in para No.17 of
the written statement?
4.Whether the defendant
No.8 proves that the court
fee paid is insufficient as
alleged in para No.18 of
the written statement?
(treated as preliminary
issue)
5.Whether the defendants
No.16 and 17 prove that
they are the bonafide
purchasers for value and
they are in possession of
the same without any
hindrance as alleged in
para No.23 of the written
statement?
6. Whether defendant No.16
and 17 are entitled for the
counter claim against
defendants No.1 to 15 as
contended in the written
statement?
7. Whether plaintiff is
entitled for the relief
sought for?
8. What order or decree?
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6. In order to prove the case of the plaintiff, PW-1 was
examined and got marked documents at Ex.P.1 to Ex.P.13.
Ex.D.1 to Ex.D.3 are marked during the cross-examination of
PW-1. On behalf of the defendants, Defendant No.4 examined
as DW-1, Defendant No.1 examined as DW-2, Defendant
No.16 examined as DW-3 and in all got marked documents at
Ex.D.4 to Ex.D.23.
7. Plaintiff counsel has field written arguments and
defendant counsel has submitted arguments orally and also
filed written arguments. Inview of the rival contention of both
the parties and the documents and the evidence adduced by
parties, my answer to the above issues are as under;
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Affirmative
Issue No.8 : As per final order, for
the following;
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R E A SON S
8. Issue No.2:- Now in this case the issue No.1 is
relating to the allotment of share in the suit schedule property.
The issue No.1 will be considered along with the issue No.7.
Now, in this case the plaintiff has specifically contended that
though he is the son of Gowramma and Ramakrishna who is
none other than the father of the defendant No.1, 4, 8 and 12
and defendant No.2, 3, 5, 6, 7, 13 to 15 are the representatives
of the defendants family and without recognizing the right of
the plaintiff, the defendant No1. To 15 have sold the property
in favour of the defendant NO.16 and 17 though the plaintiff is
having right in the suit schedule property. The specific case of
the plaintiff is that the suit schedule property was acquired
under the sale deed by Smt.Gowramma who is none other
than the mother of the plaintiff and before purchase of the
property it was belonging to M.P.Patil who inturn executed the
sale deed infavour of Madhura.S.Patil and she executed the
sale deed infavour of another person and from that person
Smt.Gowramma has purchased the property. As the property
was acquired by BDA and an application was submitted for re-
allotment of the property site No.413 same was reallotted and
that was bifurcated as 413/B and the defendant No.1 has
submitted a false genealogical tree without mentioning the
plaintiff name in the Genealogical Tree and obtained the sale
deed in favour of defendant No.1 and after executing the sale
deed, defendant No.1 to 15 have executed the sale deed
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infavour of defendant No.16 and 17.
9. As the plaintiff is a son born to Gowramma and
Ramakrishna who died intestate, according to the death
certificate produced by the plaintiff and upon death of the
owner of the property who died intestate all the legal heirs of
Smt.Gowramma and Ramakrishna are entitled to succeed to
the property. In accordance with Section 15 of Hindu
Succession Act, when a female Hindu died intestate the class I
heirs of such family will be succeed to the property
simultaneously and equally. Now, it is to be specifically noted
the PW-1 who has been examined before the court has
specifically stated about the relationship of the plaintiff with
Gowramma and Ramakrishna and in the course of cross-
examination the defendants have suggested that in the year
1983 the parents and brothers of the plaintiff have borrowed
loan of Rs.40,00,000/- for construction of the property from
Bengaluru Central Co-operative Bank is admitted. He has also
specifically admitted in the course of cross-examination that
there was no signature obtained for borrowing of loan from the
bank and it is also suggested that Somashekar the defendant
No.1 has performed the obsequies of his father and it is also
the contention of the defendant that the plaintiff was given in
adoption to B.T.Ramaiah and his wife. But inorder to establish
the fact of adoption, there is no specific evidence adduced by
the defendants and they have also not produced any
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documents to establish the fact of adoption. The production of
documents such as voter ID, Ration card and Genealogical
Tree and Ex.P.3 Will and Ex.D.8 the application submitted
before the Corporation Authority for transfer of khatha of
Hanumanthanagara property will not infos-facto prove the fact
of adoption. More particularly, it is to be noted the defendant
counsel in his argument has contended that in accordance
with Ex.D.3 the Will was executed by B.T.Ramaiah in favour of
the plaintiff and in the Will it has been specifically stated that
the property stands in the name of B.T.Ramaiah will have to be
enjoyed jointly with his wife till the life time of his wife and
thereafter the plaintiff has to succeed to the property.
Accordingly by producing the Will and by submitted the
application, he has changed the khatha in his favour. But by
looking into the wordings stated in Ex.D.3 which reads as
follows;
"ನನಗಗ ಲಕಕಮಕ ನಗನದಗಗ ಲಗಗವವಗ ನಮಗಗ ಗಗಡಡ
ಸಗತವನವವಗಲ ಹಗಣಡಣ ಸಗತವನವವಗಲ ಇಲಲದ ಕವರಣ ನನಗ
ಧಮರಪತಗ ಲಕಕಮಕನ ತಗಗಯನ ನನಗ ನವದನಯ ಆದ
ಗಗರಮಕನ ಮಗ ಆರ .ಕಕಷಣ ಮನತರ ಎಗಬ ಹಡಡಡಗನನಡಗ
ನವನಡ ಚಕಕ ಮಗಡವನಗದ ನಮಕ ಮನಗಯಲಯಗಯ ಸವಕ ಸಲಡಹ
ವದವದಭವದಸ ಮಡಸಕಗನ ಗಡರಡತಗತಯವಗ ಈತನಗಯ ಮಡಗದಗ
ಇಳವಯಸಸನಲಲರಡವ ನಮಕನಡಗ ನಗನ ಯಡಕಗನ ಗಡಡ ಉತತರ ಕಕಯದ
ಕವಯರಗಳನಡಗ ನಗರವಗಯರಸಡತವತನಗಗಬ ನಗಬಕಗ ನಮಗಗ
ಇರಡತಗತ ."
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10. By looking into these words, stated in the Will which
is marked as Ex.D.3 dated 03.02.1982 specifically states as a
faster son. It is not mentioned in the Will as adopted son. If
really there was a adoption as contended by the defendants the
same could have find a place in Ex.D.3 itself. As rightly
contended by the plaintiff counsel and inview of the citation
referred by the learned counsel appearing for the plaintiff in
AIR 1967 SC 109 it is specifically stated that - ' the adoption
can be proved even in the absence of a adoption deed'. But to
establish the change of status of a person, from the borne
family into adopting family a higher footer evidence will
have to be adduced to prove there was a adoption of that
person. By that act of adoption right of that person in the
natural family has been lost and he acquired the right in the
adoptive family. That has to be established before the court
convincingly by producing the cogent and specific evidence.
Mere production of voter ID or ration card and Ex.D.3 Will, will
not prove about the adoption. But where as it establishes
about the relationship of foster son which has been stated in
Ex.D.3. The word fostered son connotes the entire different
meaning with the word of adoptive son. Mere maintenance and
education of plaintiff by B.T.Ramaiah will not gives rise a right
to claim as adopted son.
11. The learned defendant counsel has contended in his
argument and the defendant No.16 and 17 counsel has drawn
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my attention to the decision reported in 2019 SCC Online and
2000 SC Online 721 and Andhra Pradesh High Court decision
and contended that though in the absence of adoption deed, if
the evidence adduced by the defendant if it is cogent and
clinching evidence the adoption can be accepted and further he
has also drawn my attention to the principles laid down in the
decision when a person has given in adoption, the right of joint
possession and enjoyment of co-parcener will be extinguished
and in this case as the plaintiff has specifically acquired a
property from B.T.Ramaiah by virtue of Ex.D.3 it is established
that he is the adopted son of B.T.Ramaiah and
Smt.Lakshmamma. Hence, the alienation made by the
defendant No1. To 15 in favour of defendant No.16 and 17 wll
have to be considered as a valid transaction.
12. But when a specific defence has been taken by
Defendant No.8 that the plaintiff was given in adoption atleast
inorder to establish the fact of adoption the approved
formalities of giving and taking will have to be established in
the absence of adoption deed. But inorder to corroborate such
a fact, the defendants have not adduced any evidence. In the
course of cross-examination, he has specifically admitted as
follows;
"I do not remember in which
year Krisha Murthy gone adoption. I
say about 50 years back. There is
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adoption deed. It is not true to
suggest that Krishna Murthy had not
gone adoption and thee is no such
adoption deed. I have produced the
adoption deed to the court.
There was no function of
B.T.Ramaiah and his wife taken
plaintiff for adoption. I say in the
Will it is mentioned as the plaintiff is
the fostered son of B.T.Ramaiah. I
have understood fostered son and
adopted son are one and the same"
13. By looking into the cross-examination of DW-1 it is
established that there was no function performed for adoption
of the plaintiff by B.T.Ramaiah and his wife and he says that
words foster son and adoption are one and the same. It is also
specifically admitted by DW-1 that the property has not been
divided between the members of the joint family and it is also
admitted in the course of cross-examination that the plaintiff is
the son of Smt.Gowramma and he is the elder brother of
defendant No.1 and with regard to the relationship of parties
also there is no dispute. As rightly contended by the plaintiff in
the written arguments when a specific defence has been taken
with respect to the adoption, in the absence of proof of that
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adoption convincingly before the court the question of
disregarding the right of the plaintiff cannot be considered.
14. Further, Ex.D.3 Will executed by B.T.Ramaiah states
about the foster son aspect. As a fostered son he has look after
the well being of B.T.Ramaiah and Smt.Lakshmamma, hence
he has executed the Will. It is also admitted fact that the
obsequies of B.T.Ramaiah and Smt.Lakshmamma has been
performed by the plaintiff. Now though the loan was borrowed
by parents and brothers of the plaintiff without including the
plaintiff that will not absolve the right of the plaintiff acquired
in the property by virtue of a succession. It is also a well
established principle of law that the succession cannot be kept
in abeyance as soon as the propositor died intestate the
succession opens and all the persons who are entitled for
succession will be entitled to succeed.
15. Though in this case earlier the loan was borrowed,
but after the death of B.T.Ramaiah and Lakshmamma
succession opens and on the date of death of Lakshmamma,
the parties entitled to succeed the property will be entitled to
succeed to divest with the succession of the plaintiff the
defendants have to establish that he was given in adoption by
the parents of the plaintiff to B.T.Ramaiah and Lakshmamma.
In the absence of any corroborative to prove the fact and also
there is no specific corroborative and convincing evidence to
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establish the adoption when it is admitted by the defendant
No.1 to 15 as the Legal Representatives of Gowramma who is
the plaintiff, he is entitled for a share in the property and if any
alienation is made without recognizing the right of the plaintiff,
then such alienation will not be binding on the plaintiff until
he acquires a share in the property. Hence, I have no
hesitation to answer issue No.2 in the affirmative.
16. ISSUE No.3:- Now, this issue has to be proved by
the 8th defendant. Now the 8th defendant has specifically took
up a contention that the suit schedule property was alienated
in favour of the defendant No.16 and 17 for the family
necessities and legal necessities. Now it is admitted fact by
defendant No.1 and 2 that the property was alienated in the
year 2012 that is on 22.05.2012. Now by looking into the sale
deed it can be noticed that no where in the sale deed it has
been mentioned about the legal necessities. On the other hand,
it has been falsely stated that the 1 st defendant alone is having
authority as eldest brother to execute the document in favour
of the BDA though the plaintiff has been one of the Legal
Representatives of Smt.Gowramma. In para No.14 of the sale
deed, it is specifically stated that for repayment of loan and for
the benefit of the minor children, the property has been sold.
But it has been specifically noted to corroborate that there was
loan as on the date of selling away the property, no document
is produced. On the contrary, it has been stated the earlier
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loan borrowed has been repaid by the defendants. Whenever
the specific defence of legal necessity or family necessity is
taken by the defendant it is the burden on him to establish
that fact. But the defendant No.8 has not entered the witness
box and he has not given any corroborative evidence to that
aspect.
17. Though the 4th defendant has been examined he has
specifically stated that loan was borrowed in the year 1998 and
the sale deed was executed in favour of the 1 st defendant in the
year 2012. Even by looking into the sale deed executed by BDA
in favour of the 1st defendant dated 14.05.2012, it is
specifically stated that Smt.Gowramma has purchased ½
share of the property and succeeded to the property by virtue
of succession. Accordingly, sale deed has been executed which
clearly establishes the fact of acquisition of Smt.Gowramma as
a self acquired property. Now, if really there was a loan on the
property they could have produced the documents. But though
they have produced Ex.D.1 and Ex.D.2, which does not
establishes about the borrowing of loan as on the date of
alienation and there is no material placed by the defendant
No.8 to establish the fact that the sale was executed for legal
necessity. In the absence of a specific proof of proving of the
fact that the alienation was made for legal and domestic
necessity the question of considering that defence and
accepting that defence by the court does not arise at all.
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Hence, I have no hesitation to answer issue No.3 in the
negative.
18. ISSUE No.5 & 6:- Since, these two issues are
interlinked with each other and as these two issues are
relating to Defendant No.16 and 17, I am discussing both
these issues together. Now, the specific contention has been
taken by the 16th and 17th defendants that they are bonafide
purchasers and purchased the property believing the version of
defendant No.1 to 15 that they are the absolute owners of the
property. Further they have also claimed the counter claim
against the defendant No.1 to 15 to indemnify the loss
sustained by them in case of decreeing the suit. Now as the
defendant No.16 and 17 are the purchasers of the property
they cannot take the defence of the vendor, because he is not a
member of the family of the plaintiff and defendant No.1 to 15.
But in the course of his evidence, he has specifically stated
about the transaction of the property and also contended that
in the written arguments also that the plaintiff has gone in
adoption. Hence, it has to be considered as a bonafide
purchaser. Further, he has also drawn my attention to the
cross-examination portion of PW-1 wherein he has specifically
admitted about the fact of adoption and he has also
contended that he was remained silent in claiming a right in
the schedule property for three decades or subsequent to the
death of his biological parents in the year 1988 and also
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contended that in view of the Principle of Adoption and
Maintenance Act, the performance of Duttahomam is not
essentially required as per pre-requisition laid down in Section
17 of Hindu Adoption and Maintenance Act. When it is
specifically stated that Duttahomam is not essential by looking
into the documents produced by the defendant such as Voters
ID, Ration Card and Genealogical Tree and the reqisition
submitted to the BBMP for change of khatha and also by virtue
of the Will Ex.D.3 it is established that the plaintiff has loosed
his right in the natural family and defendant No.1 to 15 have
acquired absolute right over the property and inturn they have
alienated the property in favour of defendant No.16 and 17. It
is to be held that Defendant No.16 and 17 are the bonafide
purchasers. But it is to be specifically noted as already
discussed in issue No.2, I have come to the specific conclusion
and also I have discussed about the proof of adoption in that
issue and I have also come to the specific conclusion that since
the adoption has not been established and by way of
succession the right of the plaintiff is recognized and when
without recognizing the right of the plaintiff, the defendant
No.16 and 17 have purchased the property it cannot be held
that the defendant No.16 and 17 are the bonafide purchasers.
19. Now, in the counter claim, defendant No.16 and 17
have specifically contended that since defendant No.1 to 15
have unequivocally stated in the sale deed that in the event of
25
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any claim made on the property or if it is established on any
defective title, the defendants are liable to indemnify the
defendant No.16 and 17 and accordingly he has drawn my
attention to clause 12 and 16 of the Sale deed which
established about the indemnifying the clause. Further, it is
also to be noted in the prayer column he has stated that the
defendant No.1 to 15 are to be directed to indemnify the
defendants. But no specific claim has been made and what is
the quantum to be indemnified has also not been stated. Now,
as a counter claim it is the bounden duty of the defendant
No.16 and 17 to establish the fact that inview of taking all
precautions and upon enquiry of all the facts he has
purchased the property and on account of negligent act of the
defendant No.1 to 15 he has suffered loss, then the question of
allowing the counter claim arises. But where as in this case, he
has specifically admitted that he has not taken any public
notice before purchasing of the property and further he has
also not sustained any lose on account of purchasing of the
property. Now, the question of indemnifying defendant No.16
and 17 arises only after dividing the property only to the extent
of the share of the plaintiff and in the event of allocating the
share of the plaintiff in the property then the question of
indemnifying arises. But such indemnification right can also
be put forwarded by defendant No.16 and 17 in the final decree
petition while equivocating the property division on the basis of
the preliminary decree passed. But where as in this case, when
26
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the defendant No.1 to 5 were aware of the fact of right of the
plaintiff in the property inspite of that they have alienated the
property to the defendant No.16 and 17 and in turn they have
purchased the property the question of indemnification does
not arise at all. Under such circumstances, I have no
hesitation to answer the issue No.5 and 6 in the negative.
20. ISSUE No.4:- Now this issue is to be proved by
defendant No.8 since he has taken a defence that the court fee
paid by the plaintiff is not sufficient since the plaintiff is not in
possession and enjoyment of the property for a period of more
than 12 years and it is in the exclusive possession of defendant
No.1 to 15 and Defendant No.16 and 17, then the court fee has
to be paid on the basis of market value and in this regard the
defendant No.8 has took up a contention that the court fee has
to be paid on the market value. But as rightly contended by the
plaintiff counsel, in the decision reported in ILR 1998 KAR 681
and ILR 2012 KAR 3558 wherein the Hon'ble High Court has
specifically held that partial partition suit is maintainable and
the court fee paid on the condition that it is in joint possession
and enjoyment of the plaintiff and Defendant No.1 to 15 will
have to be considered. According to Section 35(2) Karnataka
Court Fee and Suit Valuation Act it is established that if the
claim is made with respect to the joint possession and
enjoyment, then the value has to be made under Section 35(2)
of the act and the question of paying Court fee on the market
27
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value does not arise at all and further though according to the
defendant No.1 to 15 they are in exclusive possession and
enjoyment of the suit schedule property after the death of
Smt.Gowramma the plaintiff acquires right in the property
because she died intestate and by virtue of that when it is
specifically admitted by DW-1 in the course of cross-
examination that there was no division of the property between
the members of the family it can be held that the property is in
joint possession and enjoyment of the plaintiff and defendant
No.1 to 15. Unless and until it is established that by virtue of
partition, the exclusive possession was acquired by the
defendant, till then the plaintiff version will have to be
accepted and court fee paid on that value will have to be
considered as correct one and inorder to substantiate the
contention of defendant No.8 he has not stepped into the
witness box and he has not given any oral or documentary
evidence. Under such circumstances, I have no hesitation to
answer issue No.4 in the negative.
21. ISSUE No.1 and 7:- As these two issues are relating
to the relief claimed in the paint, hence I have taken these two
issues together for discussion. Now, the specific case of the
plaintiff is that the plaintiff is none other than the son of
Smt.Gowramma and Ramakrishna , he has got a right of 1/5th
hare in the schedule property. But without recognizing the
right of the plaintiff, the defendant No.1 to 15 have alienated
28
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the property to the defendant No.16 and 17. As a legal
representative and as a class I heir of Smt.Gowramma and
Ramakrishan, the plaintiff is entitled for 1/5th share in the
suit schedule property. Hence, he has filed this suit and
conduced the suit for granting 1/5th share.
22. Now the contesting defendant is only the 8th
defendant and the subsequent purchaser of the suit schedule
property defendant No.16 and 17. Both of them have
contended that by virtue of adoption, the plaintiff looses his
right in the natural family as he has acquired the property in
the adoptive family by virtue of Ex.D.3 he is not entitled for a
share in the natural family. Further, it is also contended that
from 50 years the plaintiff is not having any connection with
the family of Defendant No.1, 4, 8 and 12 and even at the time
of borrowing of loan from the bank he has not participated and
for the legal necessity the property has been alienated. Hence,
he cannot claim the right in the property. Now, it is to be
specifically noted the plaintiff has been examined as PW-1 and
in the entire cross-examination portion of PW-1 no where it
has been specifically suggested that he was given in adoption
to B.T.Ramaiah and Smt.Lakshmamma. On the contrary the
suggestion has been made that the loan was borrowed in the
absence of the plaintiff and it was repaid by the defendants.
Hence, the claim of the plaintiff will have to be rejected.
Further, it is also suggested that since the property which was
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OS No.5415/2012
bequeathed by B.T.Ramaiah, in favour of the plaintiff as an
adoptive son is an admitted fact now the plaintiff is estopped
from claiming right in the property of the natural family.
23. But when a suit for partition has been filed alleging
that the property was a self acquired property of
Smt.Gowramma and he is the son of Gowramma and
Ramakrishna which is also corroborated by Genealogical Tree
and the SSLC Marks Card produced in this case wherein the
name of the father is mentioned as Ramakrishna in the year
1957. Now inorder to corroborate the fact that the plaintiff has
lost the right in the natural family there is absolutely no
material placed by the defendant on record. The documents
relied upon by the defendant is only voters ID, Ration Card
and Genealogical Tree. By producing those documents it is not
established that he was adopted by B.T.Ramaiah and
Smt.Lakshmamma. The ration card, voters ID and genealogical
tree may mention as a son of B.T.Ramaiah, as it is the
admitted fact and as it is mentioned in Ex.D.3 the will
executed by B.T.Ramaiah where in he has specifically stated
that the plaintiff was treated as a fostered son, the name of the
father has been entered in the ration card and as well as voters
ID. But when a contention has been taken by the defendants
that he has gone in adoption, more convincible evidence will
have to be produced to establish that fact. The learned
defendant counsel has contended that inview of clear
30
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admission in the course of cross-examination it is established
that he has given in adoption. But mere admission of PW-1
cannot be replaced. The evidence to be adduced by the
defendant because when a specific defence has been taken by
the defendant about the adoption the burden is upon the
defendant to establish that fact. He cannot rely on the
admission of the plaintiff to prove his case. He has to prove his
case independently and convincingly before the court. In the
absence of such evidence adduced by the defendant, the
question of disputing the claim of the plaintiff in a suit does
not arise at all. On the other hand, according to Section 15 of
the Hindu Succession Act, whenever the female Hindu died
intestate, property has to be devolved upon all the class I heirs
of that female Hindu simultaneously and equally. In this case
there is no dispute about the fact of plaintiff as a son of
Smt.Gowramma and Sri.Ramakrishna. In such a
circumstances, after the death of both the parents of the Class
I heirs are entitled to succeed to the property unless it is
established that the right which have been accrued to the
plaintiff by way of succession has been extinguished by his act
or by any act of law. Inorder to extinguish the right of the
plaintiff the defendant has to establish about the adoption of
the plaintiff to B.T.Ramaiahs family. But there is absolutely no
evidence produced by the defendants to establish this fact.
Under such circumstances, I have no hesitation to answer
issue No.1 and 7 in the affirmative.
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24. ISSUE No.8:- Inview of the above, I proceed to pass
the following;
ORDER
The suit of the plaintiff is hereby decreed.
The plaintiff is entitled for 1/5th share in the suit schedule property.
The defendants are hereby directed to effect the partition within six months from the date of decree and the alienation made in favour of defendant No.16 and 17 is not binding on the plaintiff. Further, the counter claim made by the defendant No.16 and 17 is also hereby rejected.
Draw preliminary decree granting six months time as the matter is of the year 2012. (Dictated to the Stenographer, transcript corrected, signed and then pronounced by me in the open Court on this the 12 th day of November, 2020).
(S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore.
32OS No.5415/2012 A NN E X U R E I. List of witnesses examined on behalf of :
a) Plaintiff's side:
PW-1 : Krishnamurthy.R
b) Defendant's side:
DW-1 : R.Shubha
DW-2 : R.Somashekar
DW-3 : Jitendra Kumar
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 : Genealogical tree Ex.P.2 : C.C. of the sale deed dt.09.02.1981 Ex.P.3 : C.C. of the sale deed dt.22.05.12.
Ex.P.4 : Khatha Extract standing in the name
of defendant No.16 and 17
Ex.P.5 : C.C. of the sale deed dt.14.05.12
Ex.P.6 : Khahta Extract
Ex.P.7 : Death Certificate of Gworamma
Ex.P.8 : Death Certificate of Ramakrishna
Ex.P.9 : SSLC Marks card of PW-1
Ex.P.10 : Aadhar Card
Ex.P.11 : Driving License
Ex.P.12 : Pan Card
Ex.P.13 : Voter ID
b) defendants side :
Ex.D.1 : Mortgage deed
33
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Ex.D.2 : Mortgage deed
Ex.D.3 : Will dated 03.02.1982
Ex.D.4 : Ration Card
Ex.D.5 : Voter ID
Ex.D.6 : Family Tree
Ex.D.7 : Death Certificate
Ex.D.8 : KT12/15/11-12
Ex.D.9 : Original Sale deed dt.22.05.12
Ex.D.10 : Khatha Extract dt.22.05.12
Ex.D.11 : Khatha Certificate dt.22.05.12
Ex.D.12 : Tax paid receipt dt.13.06.19
Ex.D.13 : Tax paid receipt dt.02.06.11
Ex.D.14 : Tax paid receipt dt.04.12.10
Ex.D.15 : Electricity Bill dt.11.04.2015
Ex.D.16 : Water Bill receipt dt.14.04.2015
Ex.D.17 : Electricity Bill dt.14.10.19
Ex.D.18 : Water bills with receipt dt.14.10.19
and 17.10.19
Ex.D.19 : HP gas cylinder receipt dt.28.08.14
and 24.12.14
Ex.D.20 : Post paid mobile bill dt.27.03.15
Ex.D.21 : Original khatha extract dt.09.07.12
Ex.D.22 : Original khahta Extract dt.09.07.12
Ex.D.23 : Original endorsement dt.02.06.12
(S.R.MANIKYA)
LXI Addl. City Civil & Sessions Judge, Bangalore.34
OS No.5415/2012 ORDER PRONOUNCED IN OPEN COURT VIDE SEPERATE TYPED ORDER The I.A. No.18 filed by the plaintiff under Section 151 of CPC is here by dismissed as no merits. Consequently, judgment is passed.
(S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore.
JUDGMENT PRONOUNCED IN OPEN COURT VIDE SEPARATE TYPED ORDER The plaintiff is entitled for 1/5th share in the suit schedule property.
The defendants are hereby directed to effect the partition within six months from the date of decree and the alienation made in favour of defendant No.16 and 17 is not binding on the plaintiff. Further, the counter claim made by the defendant No.16 and 17 is also hereby rejected.
35 OS No.5415/2012 Draw preliminary decree granting six months time as the matter is of the year 2012.
(S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore.